10 December 2002. Thanks to D.
Stewart Baker is a former Counsel of the National Security Agency.
From: "Baker, Stewart" <SBaker@steptoe.com> To: "'Dave Farber'" <dave@farber.net> Cc: "Albertazzie, Sally" <SAlbertazzie@steptoe.com> Date: Mon, 09 Dec 2002 13:51:18 -0500 Dave, I'll be moderating a fairly high-powered panel in Washington on Wednesday December 11. The panel will discuss the recent FISA decision about the "wall" between law enforcement and intelligence intercepts. The public is welcome, but I think the committee is charging $20 to cover the refreshments that follow. Details below. Stewart Baker The American Bar Association Standing Committee on Law and National Security presents -- FISA and the Courts -- What the Recent Decision Means for Intelligence Intercepts Wednesday, December 11, 2002 5:00 - 7:00 p.m. University Club 1135 16th Street, NW Washington, DC The FISA Review Court's recent decision is the most detailed and sweeping examination of FISA and its constitutionality in a quarter century. By overturning the lower FISA court's guidelines and providing broad discretion to Executive decision makers, the ruling of this three-judge panel will allow intelligence investigators and criminal prosecutors to more easily share information about ongoing terrorism and espionage cases. Questions remain, including the most basic: where the constitutional lines should be drawn on intelligence intercepts, whether prosecutors should direct electronic and physical surveillance under FISA, and what if anything should remain of the "wall" between law enforcement and intelligence. The appeal was argued in secret, and only by the Department of Justice. This will be a rare public airing of the issues the FISA appeals court has struggled to resolve. Panelists will include the Justice Department attorney who argued the appeal, a former Justice Department official who was involved in some of the earliest guidelines for FISA intercepts, and the General Counsel of the Senate Select Committee on Intelligence during the debate over the USA PATRIOT ACT. Panel: Stewart Baker, Moderator Ken Bass, former Counsel for Intelligence Policy, U.S. Department of Justice and currently in private practice. David Kris, Associate Deputy Attorney General, U.S. Department of Justice Vicki Divoll, General Counsel, Senate Select Committee on Intelligence
The New York Times, December 10, 2002
By MICHAEL MOSS and FORD FESSENDEN
When the Federal Bureau of Investigation grew concerned this spring that
terrorists might attack using scuba gear, it set out to identify every person
who had taken diving lessons in the previous three years.
Hundreds of dive shops and organizations gladly turned over their records, giving agents contact information for several million people.
"It certainly made sense to help them out," said Alison Matherly, marketing manager for the National Association of Underwater Instructors Worldwide. "We're all in this together."
But just as the effort was wrapping up in July, the F.B.I. ran into a two-man revolt. The owners of the Reef Seekers Dive Company in Beverly Hills, Calif., balked at turning over the records of their clients, who include Tom Cruise and Tommy Lee Jones — even when officials came back with a subpoena asking for "any and all documents and other records relating to all noncertified divers and referrals from July 1, 1999, through July 16, 2002."
Faced with defending the request before a judge, the prosecutor handling the matter notified Reef Seekers' lawyer that he was withdrawing the subpoena. The company's records stayed put.
"We're just a small business trying to make a living, and I do not relish the idea of standing up against the F.B.I.," said Ken Kurtis, one of the owners of Reef Seekers. "But I think somebody's got to do it."
In this case, the government took a tiny step back. But across the country, sometimes to the dismay of civil libertarians, law enforcement officials are maneuvering to seize the information-gathering weapons they say they desperately need to thwart terrorist attacks.
From New York City to Seattle, police officials are looking to do away with rules that block them from spying on people and groups without evidence that a crime has been committed. They say these rules, forced on them in the 1970's and 80's to halt abuses, now prevent them from infiltrating mosques and other settings where terrorists might plot.
At the same time, federal and local police agencies are looking for systematic, high-tech ways to root out terrorists before they strike. In a sense, the scuba dragnet was cumbersome, old-fashioned police work, albeit on a vast scale. Now officials are hatching elaborate plans for dumping gigabytes of delicate information into big computers, where it would be blended with public records and stirred with sophisticated software.
In recent days, federal law enforcement officials have spoken ambitiously and often about their plans to remake the F.B.I. as a domestic counterterrorism agency. But the spy story has been unfolding, quietly and sometimes haltingly, for more than a year now, since the attacks on the World Trade Center and the Pentagon.
Some people in law enforcement remain unconvinced that all these new tools are needed, and some experts are skeptical that high-tech data mining will bring much of value to light.
Still, civil libertarians increasingly worry about how law enforcement might wield its new powers. They say the nation is putting at risk the very thing it is fighting for: the personal freedoms and rights embodied in the Constitution. Moreover, they say, authorities with powerful technology will inevitably blunder, as became evident in October when an audit revealed that the Navy had lost nearly two dozen computers authorized to process classified information.
What perhaps angers the privacy advocates most is that so much of this revolution in police work is taking place in secret, said Cindy Cohn, legal director of the Electronic Frontier Foundation, which represented Reef Seekers.
"If we are going to decide as a country that because of our worry about terrorism that we are willing to give up our basic privacy, we need an open and full debate on whether we want to make such a fundamental change," Ms. Cohn said.
But some intelligence experts say that in a changed world, the game is already up for those who would value civil liberties over the war on terrorism. "It's the end of a nice, comfortable set of assumptions that allowed us to keep ourselves protected from some kinds of intrusions," said Stewart A. Baker, the National Security Agency's general counsel under President Bill Clinton.
Tearing Down a Wall
The most aggressive effort to give local police departments unfettered spying
powers is taking place in New York City.
It was there 22 years ago that the police, stung by revelations of widespread abuse, agreed to stop spying on people not suspected of a crime. The agreement was part of a containment wall of laws, regulations, court decisions and ordinances erected federally and in many parts of the country in the 70's and 80's.
The F.B.I.'s spying authority was restricted, and the United States' foreign intelligence agencies got out of the business of domestic spying altogether. States passed their own laws. On the local level, ordinances and consent decrees were enacted not just in New York but also in Los Angeles, Chicago, San Francisco and Seattle. In the years since, these strictures have "become part of the culture," Mr. Baker said.
But the wall is under attack. Last month, a special appeals court ruled that the sweeping antiterrorism legislation known as the U.S.A. Patriot Act, enacted shortly after the September 2001 attacks to give the government expanded terror-fighting capacity, freed federal prosecutors to seek wiretap and surveillance authority in the absence of criminal activity. In Chicago last year, a federal appeals court threw out the agreement that restricted police surveillance. Some officials in Seattle would like to follow suit, saying they are effectively sidelined in the terrorism war.
In New York, the Police Department has sued in federal court in Manhattan to end the consent decree the department signed in 1980 to end a civil rights lawsuit over the infiltration of political groups.
Attorney General John Ashcroft and New York's police commissioner, Raymond W. Kelly, say the wall is a relic — unnecessary and, worse, dangerous. David Cohen, the former deputy director of central intelligence who is now the Police Department's deputy commissioner for intelligence, argues that the consent decree's requirement of a suspicion of criminal activity prevents officers from infiltrating mosques.
"In the last decade, we have seen how the mosque and Islamic institutes have been used to shield the work of terrorists from law enforcement scrutiny by taking advantage of restrictions on the investigation of First Amendment activity," Mr. Cohen said in an affidavit.
The police in other cities cite the same need. "We're prohibited from collecting things that will make us a safer city," said Lt. Ron Leavell, commander of the criminal intelligence division of the Seattle police.
Mr. Cohen did not argue in his affidavit that the authorities, if unshackled, could have prevented the Sept. 11 attacks. But he did suggest that the F.B.I.'s failure to dig more deeply into the information it had before the attacks turned on agents' fears that they could not climb the wall.
"The recent disclosure that F.B.I. field agents were blocked from pursuing an investigation of Zacarias Moussaoui because officials in Washington did not believe there was sufficient evidence of criminal activity to support a warrant points out how one person's judgment in applying an imprecise test may result in the costly loss of critical intelligence," Mr. Cohen said.
Mr. Cohen has also asked that his testimony before the federal court be given in secret, unheard even by opposing lawyers. Last week, a judge told New York City that it needed to present better arguments to justify such extraordinary secrecy.
Civil libertarians, frustrated that they cannot draw the other side into a debate, argue that questions about the need for such expanded powers are critical, and far from answered. "Who said you have to destroy a village in order to save it?" asked Jethro Eisenstein, one of the lawyers who negotiated the original consent decree. "We're protecting freedom and democracy, but unfortunately freedom and democracy have to be sacrificed."
Even the police are far from unanimous about how intrusive they must be. The Chicago police, who have been free from their consent decree for nearly two years, say they have yet to use the new power. The Los Angeles police have made no effort to change their guidelines.
"I have not heard complaints that the antiterrorist division has been inhibited in its work," said Joe Gunn, executive director of the Los Angeles Police Commission.
A joint Congressional inquiry into intelligence failures before Sept. 11 concluded that the failures had less to do with the inability of authorities to gather information than with their inability to analyze, understand, share and act on it.
"The lesson of Moussaoui was that F.B.I. headquarters was telling the field office the wrong advice," said Eleanor Hill, staff director of the inquiry. "Fixing what happened in this case is not inconsistent with preserving civil liberties."
`It Smacks of Big Brother'
The Congressional inquiry's lingering criticism has added impetus to a movement
within government to equip terror fighters with better computer technology.
If humans missed the clues, the reasoning goes, perhaps a computer will not.
Clearly, the F.B.I. is operating in the dark ages of technology. For instance, when agents in San Diego want to check out new leads, they walk across the street to the Joint Terrorism Task Force offices, where suspect names must be run through two dozen federal and local databases.
Using filters from the Navy's space warfare project, Spawar, the agents are now dumping all that data into one big computer so that with one mouse click they can find everything from traffic fines to immigration law violations. A test run is expected early next year. Similar efforts to consolidate and share information are under way in Baltimore; Seattle; St. Louis; Portland, Ore.; and Norfolk, Va.
"It smacks of Big Brother, and I understand people's concern," said William D. Gore, a special agent in charge at the San Diego office. "But somehow I'd rather have the F.B.I. have access to this data than some telemarketer who is intent on ripping you off."
Civil libertarians worry that centralized data will be more susceptible to theft. But they are scared even more by the next step officials want to take: mining that data to divine the next terrorist strike.
The Defense Department has embarked on a five-year effort to create a
superprogram called
Like Admiral Poindexter, the transportation agency is drawing from companies
that help private industry better market their products. Among them is the
Experts on consumer profiling say law enforcement officials face two big problems. Some commercial databases have high error rates, and so little is known about terrorists that it could be very difficult to distinguish them from other people.
"The idea that data mining of some vast collection of databases of consumer activity is going to deliver usable alerts of terrorist activities is sheer credulity on a massive scale," said Jason Catlett of the Junkbusters Corporation, a privacy advocacy business. The data mining companies, Mr. Catlett added, are "mostly selling good old-fashioned snake oil."
Libraries and Scuba Schools
As it waits for the future, the F.B.I. is being pressed to gather and share much more intelligence, and that has left some potential informants uneasy and confused about their legal rights and obligations.
Just how far the F.B.I. has gone is not clear. The Justice Department told a House panel in June that it had used its new antiterrorism powers in 40 instances to share terror information from grand jury investigations with other government authorities. It said it had twice handed over terror leads from wiretaps.
But that was as far as Justice officials were willing to go, declining to answer publicly most of the committee's questions about terror-related inquiries. Civil libertarians have sued under the Freedom of Information Act to get the withheld information, including how often prosecutors have used Section 215 of the 2001 antiterror law to require bookstores or librarians to turn over patron records.
The secrecy enshrouding the counterterrorism campaign runs so deep that Section 215 makes it a crime for people merely to divulge whether the F.B.I. has demanded their records, deepening the mystery — and the uneasiness among groups that could be required to turn over information they had considered private.
"I've been on panel discussions since the Patriot Act, and I don't think I've been to one without someone willing to stand up and say, `Isn't the F.B.I. checking up on everything we do?' " said John A. Danaher III, deputy United States attorney in Connecticut.
Several weeks ago, the F.B.I. in Connecticut took the unusual step of revealing information about an investigation to dispute a newspaper report that it had "bugged" the Hartford Public Library's computers.
Michael J. Wolf, the special agent in charge, said the agency had taken only information from the hard drive of a computer at the library that had been used to hack into a California business. "The computer was never removed from the library, nor was any software installed on this or any other computer in the Hartford Public Library by the F.B.I. to monitor computer use," Mr. Wolf said in a letter to The Hartford Courant, which retracted its report.
Nevertheless, Connecticut librarians have been in an uproar over the possibility that their computers with Internet access would be monitored without their being able to say anything. They have considered posting signs warning patrons that the F.B.I. could be snooping on their keystrokes.
"I want people to know under what legal provisions they are living," said Louise Blalock, the chief librarian in Hartford.
In Fairfield, the town librarian, Tom Geoffino, turned over computer log-in sheets to the F.B.I. last January after information emerged that some of the Sept. 11 hijackers had visited the area, but he said he would demand a court order before turning over anything else. Agents have not been back asking for more, Mr. Geoffino said.
"We're not just librarians, we're Americans, and we want to see the people who did this caught," he said. "But we also have a role in protecting the institution and the attitudes people have about it."
The F.B.I.'s interest in scuba divers began shortly before Memorial Day, when United States officials received information from Afghan war detainees that suggested an interest in underwater attacks.
An F.B.I. spokesman said the agency would not confirm even that it had sought any diver names, and would not say how it might use any such information.
The owners of Reef Seekers say they had lots of reasons to turn down the F.B.I. The name-gathering made little sense to begin with, they say, because terrorists would need training far beyond recreational scuba lessons. They also worried that the new law would allow the F.B.I. to pass its client records to other agencies.
When word of their revolt got around, said Bill Wright, one of the owners, one man called Reef Seekers to applaud it, saying, "My 15-year-old daughter has taken diving lessons, and I don't want her records going to the F.B.I."
He was in a distinct minority, Mr. Wright said. Several other callers said they hoped the shop would be the next target of a terrorist bombing.